The Most Puzzling Line of the President's Speech

The most puzzling line in the President’s strange speech last night was this:

[E]ven though I possess the authority to order military strikes, I believed it was right, in the absence of a direct or imminent threat to our security, to take this debate to Congress. I believe our democracy is stronger when the President acts with the support of Congress. And I believe that America acts more effectively abroad when we stand together.

This is especially true after a decade that put more and more war-making power in the hands of the President, and more and more burdens on the shoulders of our troops, while sidelining the people’s representatives from the critical decisions about when we use force.

My first question is to what he’s referring here, or to which part of the past decade. President Bush undoubtedly held very broad views of war powers, but the two major wars embarked up during his presidency, in Afghanistan and Iraq, were clearly congressionally authorized, and Congress has played a significant role in pushing their wind-down. The 2011 Libya intervention, by contrast, was not congressionally authorized, and the Obama administration adopted the view that the War Powers Resolution did not apply to the operations there (which, unlike the contemplated Syria operations, aimed to help bring down a regime). The Obama administration has also resisted the idea that Congress should re-examine the 2001 Authorization for Use of Military Force, which has been interpreted to apply in geographically broad ways that may or may not have been intended by Congress at the time it was adopted.

My second question is why, if he believes it’s problematic that more and more war-making power has been put in the hands of the President to the exclusion of Congress, President Obama also adopts the position that he possesses unilateral constitutional authority to act in this case. We haven’t yet seen the underlying legal opinion and analysis, but Jack has pointed out here that in asserting the authority to act independently the Obama administration may be extending, not pulling back on, previous OLC reasoning about presidential power to use force.

My third question is about effectiveness. I agree that as a general matter “America acts more effectively abroad when we stand together,” but which is better for the strategic goal Obama lays out here of deterring future chemical weapon use through limited strikes: a more congressionally constrained presidential power or a more flexible one? A President with broad unilateral authority, or a system of strong, formal constitutional checks? I’ve been thinking and writing recently about the relationship between constitutional allocation of war powers and strategies of deterrence or coercive diplomacy, and I believe that even without formally voting to authorize force or not, Congress plays an important role in politically constraining the President and in signaling abroad – to adversaries and allies alike – about our policy preferences and resolve.

Part of what worries me about the President’s current approach is that even if the President can win a congressional vote to strike Syria in this instance, the debate so far has shown weak congressional commitment to a global chemical-weapons policing policy – which is what the President claims is important to U.S. security interests (“As the ban against these weapons erodes, other tyrants will have no reason to think twice about acquiring poison gas, and using them”).

If what the President intends is to threaten or use force against Syria in order to demonstrate credible U.S. resolve to punish or prevent others who use chemical weapons, too, why doesn’t the President ask Congress for a more open-ended authorization to use force in, say, any situation where a major chemical weapons attack occurs or is imminent and where alternatives to force have failed? One answer is that Congress would obviously reject that. Exactly. Every case in which the United States contemplates intervention is different, and context matters immensely – and even crazy, isolated dictators know that – which is among the reasons I’m skeptical that the contemplated strikes will bolster deterrence beyond Syria.

Matthew Waxman is a law professor at Columbia Law School, where he co-chairs the Program on Law and National Security. He is also Adjunct Senior Fellow for Law and Foreign Policy at the Council on Foreign Relations and an outside advisor to Alphabet's Jigsaw. He previously served in senior policy positions at the State Department, Defense Department, and National Security Council. After graduating from Yale Law School, he clerked for Judge Joel M. Flaum of the U.S. Court of Appeals and Supreme Court Justice David H. Souter.